B-150124, NOVEMBER 21, 1962, 42 COMP. GEN. 255

B-150124, NOVEMBER 21, 1962, 42 COMP. GEN. 255

BIDS - LATE - INVITATION MAILING REQUIREMENT THE REQUIREMENT IN AN INVITATION THAT BIDS BE POSTED EITHER BY REGISTERED OR CERTIFIED MAIL AS A PREREQUISITE TO CONSIDERATION OF A LATE BID MAY NOT BE WAIVED IN THE ABSENCE OF AUTHORITY; THEREFORE, THE REJECTION OF A LATE BID POSTED UNDER A "CERTIFICATE OF MAILING," A METHOD NOT INCLUDED IN THE INVITATION, RATHER THAN BY REGISTERED OR CERTIFIED MAIL, IS PROPER, EVEN THOUGH THE BID WAS TIMELY MAILED AND DELAYED RECEIPT WAS DUE TO THE UNEXPLAINED MISHANDLING BY POSTAL EMPLOYEES, THE MAILING CONDITIONS OF THE INVITATION BEING REASONABLE AND IN ACCORD WITH THE GOVERNING ARMED SERVICES PROCUREMENT REGULATION.

TO STAFFORD MANUFACTURING CO., INC., NOVEMBER 21, 1962:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 12, 1962, AND SUBSEQUENT CORRESPONDENCE, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ANOTHER BIDDER UNDER INVITATION FOR BIDS NO. 104-872-63, ISSUED BY THE DEPARTMENT OF THE NAVY, SHIPS PARTS CONTROL CENTER, MECHANICSBURG, PENNSYLVANIA. YOU CONTEND THAT THE PROCUREMENT OFFICIALS ERRED IN REFUSING TO CONSIDER YOUR OFFER, SINCE THE DELAY IN RECEIPT THEREOF IN THE BID ROOM AFTER THE OPENING TIME AND DATE FIXED BY THE INVITATION WAS DUE SOLELY TO THE MISHANDLING OF THE MAIL BY POSTAL EMPLOYEES, AND NOT TO ANY FAULT OR NEGLIGENCE ON THE PART OF YOUR FIRM.

THE RECORD SUPPLIED BY YOU AND BY THE ADMINISTRATIVE OFFICE SUPPORTS YOUR CONTENTION THAT THE LATE RECEIPT OF YOUR BID WAS, IN FACT, DUE TO UNEXPLAINED DELAY IN HANDLING OF THE ENVELOPE CONTAINING YOUR BID BY POST OFFICE EMPLOYEES. HOWEVER, THE INVITATION CAUTIONED ALL BIDDERS TO TAKE NOTE OF THE PROVISIONS OF PARAGRAPH 4.8 OF THE SPECIFICATIONS MADE A PART THEREOF, WHICH STIPULATED THAT--- "BIDS * * * RECEIVED AT THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS AFTER THE EXACT TIME SET FOR OPENING OF BIDS WILL NOT BE CONSIDERED UNLESS * * * (B) THEY ARE SENT BY REGISTERED MAIL, OR BY CERTIFIED MAIL FOR WHICH AN OFFICIAL POST OFFICE STAMP (POSTMARK) ON THE ORIGINAL RECEIPT FOR CERTIFIED MAIL HAS BEEN OBTAINED, * * * AND (C) IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO * * * DELAY IN THE MAILS.'

WHILE YOUR BID APPEARS TO HAVE BEEN TIMELY MAILED, IT WAS NOT SENT EITHER BY REGISTERED OR CERTIFIED MAIL, AS REQUIRED BY THE QUOTED TERMS AS A PREREQUISITE TO ITS CONSIDERATION IN THE EVENT OF LATE RECEIPT. INSTEAD, IT WAS POSTED UNDER A "CERTIFICATE OF MAILING," A METHOD OF MAILING NOT INCLUDED IN THE FOREGOING PROVISION.

THE CONDITIONS SET FORTH IN PARAGRAPH 4.8 OF THE INVITATION FOLLOW LITERALLY THE AMENDMENT OF APRIL 15, 1962, TO THE ARMED SERVICES PROCUREMENT REGULATION. WHILE IT MAY BE THAT THE MAIL SERVICE YOU ELECTED TO USE COULD HAVE BEEN AUTHORIZED AS ADEQUATE TO SATISFY THE INTENT AND PURPOSE OF THE SUBJECT PROVISION OF THE INVITATION, THE FACT REMAINS THAT IT WAS NOT LISTED THEREIN NOR IN THE CONTROLLING REGULATION. IT IS ALSO CLEAR FROM THE POSTAL MANUAL THAT THE ,CERTIFICATE OF MAILING" METHOD OF POSTING AN ARTICLE IN THE MAIL DIFFERS MATERIALLY FROM ,CERTIFIED MAIL," IN THAT IN THE LATTER CASE THE ARTICLE MAILED IS STAMPED BY THE RECEIVING POSTAL EMPLOYEE WITH AN IDENTIFYING NUMBER CORRESPONDING TO THE NUMBERED RECEIPT ISSUED FOR IT, WHEREAS A CERTIFICATE OF MAILING IS ISSUED WITHOUT ANY CORRESPONDING OFFICIAL IDENTIFICATION ON THE ARTICLE COVERED BY IT.

WE HAVE NOTED THE ALLEGATION SET FORTH IN YOUR LETTER OF OCTOBER 30, 1962, TO THE EFFECT THAT ONLY THE "CERTIFICATE OF MAILING" WHICH YOU USED WILL GUARANTEE A SHOWING AS TO THE ACTUAL HOUR OF MAILING. THAT CONTENTION IS NOT SUPPORTED BY POSTAL MANUAL. PARTS 161, 165 AND 168 OF SUBCHAPTER 160 OF THE MANUAL COVER REGISTERED, CERTIFICATE OF MAILING AND CERTIFIED MAIL, RESPECTIVELY. NO ONE OF THOSE SERVICES IS SPECIFICALLY CONCERNED WITH THE HOUR OF MAILING. SUCH MATTER IS COVERED BY PART 332 OF THE MANUAL RELATING TO ENDORSING, CANCELING AND POSTMARKING. PARAGRAPH 232.4 THEREOF STATES THAT UNDER CODE 3 THE POSTMARK WILL SHOW THE NAME OF THE POST OFFICE, NAME OF THE STATE, DATE OF MAILING AND THE HOUR OF MAILING. THE FOREGOING PROCEDURE APPEARS TO APPLY EQUALLY TO ALL THREE OF THE MAILING SERVICES REFERRED TO HEREIN AND, THEREFORE, WE CANNOT AGREE THAT THE USE OF FORM 3817 (CERTIFICATE OF MAILING) IS THE ONLY SERVICE WHICH SHOWS THE HOUR OF MAILING.

IN THIS INSTANCE, SINCE YOU FAILED TO UTILIZE ONE OF THE MAILING SERVICES LISTED IN PARAGRAPH 4.8 OF THE INVITATION AND SINCE THERE IS NO AUTHORITY TO WAIVE THOSE REQUIREMENTS OR THE APPLICABLE REGULATIONS- - WHICH CANNOT BE SAID TO BE WITHOUT A REASONABLE BASIS--- WE MUST CONCLUDE THAT THE REJECTION OF YOUR BID WAS PROPER. ACCORDINGLY, SUCH ACTION WILL NOT BE DISTURBED BY THIS OFFICE.